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THE APPEAL IN CASSATION IN CRIMINAL MATTERS IN UKRAINE - FEATURES OF THE PREPARATION

THE APPEAL IN CASSATION IN CRIMINAL MATTERS IN UKRAINE - FEATURES OF THE PREPARATION

Among many lawyers are of the opinion that an appeal against the verdict and the decision of the appellate court in a criminal case can be by changing the title text of the previously filed appeal, it's quick and not troublesome. However, this opinion can stick only Amateurs in the criminal law, about which it is better not to go. Entrust your problems to professionals.

Drafting appeals is a complicated and painstaking process, and is fundamentally different from other complaints and documents in criminal cases, it consists of further investigation of all the case materials, the establishment of the necessary grounds for reconsideration in Supreme court as well as the competent and concise rationale for the abolition of the sentence or determination of appeal. The difficulty lies in the fact that this document is necessary to prove that case as a first instance court and the arguments of the court of appeal were incorrect, that is, at least, that the judge of a district (city court), three appeal court judges and several prosecutors of different levels, the investigator and their leaders - made a mistake or intentionally broke the law. It is necessary to prove that the protection of the defendant (lawyer, etc.) understand both substantive procedural law. Since the establishment in Ukraine, the High specialized court for civil and criminal cases (01024, Kiev-24, P. orlyka street, 4) all cassation appeals in criminal cases consider the judges of the chamber of criminal cases of this court.

It should be noted that the court of cassation has the right to change or cancel your verdict only on the grounds specified in the old law, and the circumstances much narrower than appellate cases.

The verdict of the court of first instance and court of appeal determination will be canceled only in connection with: 1. Incorrect application of the criminal law. 2. Material breach of the requirements of the criminal procedure law. 3. The discrepancy of the appointed punishment to the severity of the committed crime and the personality of a convict. Other grounds for the court of cassation. Each of the grounds for setting aside an earlier ruling of the court's decisions must be duly motivated with reference to the materials of the case. Incorrect application of the criminal law, committed by the court of first instance, and which causes the cancellation of the sentence under article 371 of the criminal procedure code of Ukraine, can consist only in - the application of the penal law which does not apply, - applying the criminal law to be applied. That is, in this case, it should be the breach of an act of the defendant or the violation of the law of the General part of the penal code.

Substantial violation of criminal procedure law can be expressed in such violation of the requirements of the criminal procedure code, which affected the correctness and legality of the sentence.

The law establishes also specific violations of criminal procedure law under which the sentence is subject to cancellation in any event, these include for example: if the grounds for termination, it had not been terminated, the violation of the right to the protection requirements of the criminal procedure law, the improper conduct of the case by the judge or investigator etc. If installed in the case of circumstances precluding criminal proceedings referred to in paragraph 2 of article 6 of CPC of Ukraine, i.e. in the absence in act of structure of a crime, the court of first instance, according to part 2 article 6 of CPC of Ukraine, there were grounds for a verdict of not guilty, which was not submitted that within the meaning of part 1 of article 370 of the criminal procedure code of Ukraine and article 398 of the criminal procedure code of Ukraine may be material violations of the criminal procedure law and shall entail the abolition of the sentence by the court of cassation. However, the materiality of such violation is determined by the court of cassation is mandatory for cancellation of the sentence.

The discrepancy of the appointed punishment to the severity of the committed crime and the personality of the convicted person may Express that the court in sentencing did not take into account the data characterizing the identity of the defendant, claimed them in full, has appointed excessively severe or lenient punishment. Thus, when imposing sentence, the court shall consider the nature and degree of public danger of the committed crime.

The identity of the perpetrator and the circumstances of the case, mitigating and aggravating the responsibility. The court in sentencing must take into account mitigating circumstances such as sincere repentance and voluntary compensation or elimination of harm caused, the surrender, the Commission of a crime following a series of difficult circumstances. In determining the penalty, must steadily implement the requirements of the law on strict individualization of punishment. Unacceptable unreasonable application by courts of measures of punishment related to deprivation of liberty in respect of persons who have committed for the first time in less dangerous crimes, the correction of which can be achieved without isolation from society. To these individuals should apply such a rewarding impact on offenders as exemption from punishment to the test.

The law considers punishment unfair, when the court ordered a severe punishment for a minor offence and in any case, when imposing sentence, the court has not considered the circumstances that characterize the offense, nor the identity of the defendant. The punishment must be determined by court taking into account all of the elements of the offence, both objective and subjective, of all the circumstances, including relating to the identity of the defendant. Violation of the above circumstances, according to articles 372, 398 of the CPC of Ukraine, are the basis for cancellation by the court of cassation of the sentence. By results of consideration of case the court of cassation has the right to take just one of those decisions which are clearly stated in the criminal procedure code of Ukraine. Including to cancel the previous decision and to direct business on new consideration or the court of appeal or first instance or on an investigation. It is characteristic that for the case for investigation need to be established substantial violations of the criminal procedure law and wrong application of the criminal law could not be eliminated during a new appeal or judicial review, as is required to perform some additional investigative and operational search actions, which should be clearly justified.

According to part 2, article 386 of the criminal procedure code of Ukraine the court sentence can be appealed in cassation instance within 3 months from the date of its entry into force. To the cassation complaint shall be attached duly certified (seal of court) a copy of the contested decisions and copies of the cassation appeal in the instances by the number of participants in the process. The main part of cassations rejected due to the irregularity of their preparation, insufficient training of lawyers, which they are prepared or unwillingness (inability) to do it efficiently. Therefore, before entrusting the preparation of such documents anyone need to think several times to consult with people who have already used the services of a lawyer or law firm.

The more Ukraine will have properly drafted documents such as cassation appeals in criminal cases, the more they will be satisfied, which ultimately will contribute to the establishment of legality in the administration of justice in Ukraine.

Other articles:  Problems appeals in civil and administrative cases Courts of cassation instance in Ukraine Positive judicial practice JSCB "EMP" - conviction quashed on appeal on the case of attempt at murder (8 years) The Lawyer Evsyutin A. N. achieved the abolition of the High specialized court of Ukraine with a sentence of life imprisonment under part 2 of article 115 of the criminal code of Ukraine The Supreme court acquitted them under articles 191 § 5, 364 part 2, part 2 of 209 of the criminal code of Ukraine - a lawyer Evsyutin Alexander THE APPELLATE COURT REINSTATED THE DEADLINE FOR THE CASSATION APPEAL OF A SENTENCE (8 YEARS L/S) The Supreme court of Ukraine reversed the decision of the court of appeal in a criminal case against V. P. Petrenko


 

 

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